Summary: We will not investigate Mr X’s complaint about a Council officer’s actions in issuing him a Fixed Penalty Notice for spitting. This is because Mr X can raise a defence against the matter in court if he considers there is fault in the way it was issued. We cannot investigate Mr X’s complaint that he has been the victim of a crime as crime is a matter for the police to investigate rather than this office.

The complaint

1. Mr X complains about the actions of a Council officer when issuing him a Fixed Penalty Notice (FPN) for spitting. Mr X says the FPN was issued on the basis of a false accusation and the officer was racist and verbally and physically aggressive towards him. Mr X seeks £10,000 compensation and for the FPN to be cancelled.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X complained to the Council about the actions of a Council officer when issuing him a FPN for spitting. Mr X says the officer was verbally and physically aggressive, assaulted him and made a racist comment towards him. He says the FPN was issued on the basis of a false accusation with no evidence to support it.
7. The police attended during the exchange and Mr X says he reported the matter to the police.
8. The Council reviewed the body worn camera footage. It said Mr X was not assaulted nor were any racist comments made towards him. It also said Mr X had not raised this to the police who attended at the time. It advised Mr X it would cooperate with any police investigation. It found no fault by its officers and said the FPN was correctly issued. The Council explained Mr X could either pay the FPN to discharge liability to prosecution for the offence or he could raise a defence against the matter in the magistrates court.
9. We will not investigate this complaint. This is because Mr X can raise a defence against the issuing of the FPN in court if he believes there was fault by the Council in the way it was issued. We are not an appeal body. We cannot decide whether or not the alleged offence was committed; whether the FPN was correctly issued nor whether Mr X is liable for the alleged offence. These are matters the court will consider and decide should Mr X use his right to raise a defence against the matter in the magistrates court. This is the suitable route for Mr X to use to challenge the matter. We cannot cancel the FPN or award compensation in the way Mr X seeks.
10. We will not investigate Mr X’s complaint that he has been the victim of crime. This is because allegations of crime are matters for the police to investigate and ultimately the courts to consider and decide and Mr X says he has already reported the matter to the police.

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Final decision

11. We will not investigate Mr X’s complaint because it reasonable to expect Mr X to use his right to raise a defence against the issuing of the FPN in court. Allegations of crime are for the police to investigate and ultimately the courts to decide. We cannot investigate crime.

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Investigator's decision on behalf of the Ombudsman